Supreme Court to rule on fate of indefinite detention for Americans under NDAA

The United States Supreme Court is being asked to hear a federal lawsuit challenging the military’s legal ability to indefinitely detain persons under the National Defense Authorization Act of 2012, or NDAA.

According to Pulitzer Prize-winning journalist Chris Hedges — a
co-plaintiff in the case — attorneys will file paperwork in the
coming days requesting that the country’s high court weigh in on
Hedges v. Obama and determine the constitutionality of a
controversial provision that has continuously generated criticism
directed towards the White House since signed into law by
President Barack Obama almost two years ago and defended adamantly by his
administration in federal court in the years since.

Should the Supreme Court reject the plaintiffs’ plea, Hedges said
it could signal the “obliteration of our last remaining legal
protections.”

With the inking of his name to the annual Pentagon spending bill
nearly two years ago, President Obama awarded his military the
power to imprison persons suspected of ties to terrorist groups
until the vaguely-defined “end of hostilities.”

Journalists and human rights workers were among those to
immediately oppose the Dec. 31, 2011 signing of the NDAA — and
one provision in particular, Section 1021(e) — because they said
the US government could manipulate the law in order to detain
anyone alleged to have “substantially supported” a group
that’s considered an enemy of America, without trial, until the
end of persistent and consistently expanding warfare.

“I have had dinner more times than I can count with people
whom this country brands as terrorists … but that does not make
me one,” Hedges, a long-time war correspondent for the New
York Times, said when the suit was first filed in federal court in early 2012.

In an editorial published by Hedges on Monday, he
wrote that he has been detained numerous times during his decades
as a foreign correspondent, and in those instances was illegally
held by the US government.

“In those days there was no law that could be used to seize
and detain me,” he wrote. “Now there is.”

Last year, US District Judge Katherine Forrest of the Southern
District of New York said Section 1021 was unconstitutional and ordered an immediate stay on
the provision. Without delay, however, the Obama administration
filed an appeal which was honored this past July when the US
Court of Appeals for the Second Circuit sided with the White House and ruled 3-to-0 that the
American co-plaintiffs could not challenge the NDAA because they
lacked standing.

The appellate court decided with that ruling that US citizens
couldn’t fight Section 1021 in court because, “with respect to
citizens, lawful resident aliens, or individuals captured or
arrested in the United States, Section 1021 simply says nothing
at all.”

“The court, in essence, said that because it did not construe
the law as applying to US citizens and lawful residents we could
not bring the case to court,” Hedges wrote this week in his
op-ed.

But according to Hedges and at least one member of his legal
team, the court should be clearer and opine precisely in a manner
which ensures American citizens cannot be placed in indefinite
military custody.

“The problem is by saying there’s no standing,” attorney
Bruce Afran told Hedges, “they deprive the district court of
entering an order, saying and declaring that the statue does not
apply to US citizens or permanent residents, lawful residents in
the US.”

“We have the absurdity of the court of appeals, one of the
highest courts in the country, saying this law cannot touch
citizens and lawful residents, but depriving the trial court of
the ability to enter an order blocking it from being used in that
way,” Afran told Hedges. “The lack of an order enables
future [military] detentions. A person may have to languish for
months, maybe years, before getting a court hearing. The
[appellate] court correctly stated what the law is, but it
deprived the trial court of the ability to enter an order
stopping this [new] law from being used.”

Last year, Hedges suggested during a question-and-answer session
on Reddit.com that the Obama administration may be defending
Section 1021 so adamantly in federal court because it is already being used. If so, Hedges added this week,
negating the power provided in that provision could lead the
president to be found in contempt of court.

“If the Obama administration simply appealed it, as we
expected, it would have raised this red flag,” Hedges said in
2012. “But since they were so aggressive it means that once
Judge Forrest declared the law invalid, if they were using it, as
we expect, they could be held in contempt of court. This was
quite disturbing, for it means, I suspect, that US citizens,
probably dual nationals, are being held in military detention
facilities almost certainly overseas and maybe at home.”

This week Hedges wrote, “If Section 1021 stands it will mean
that more than 150 years of case law in which the Supreme Court
repeatedly held the military has no jurisdiction over civilians
will be abolished.”

“It will mean citizens who are charged by the government with
‘substantially supporting’ al-Qaida, the Taliban or the nebulous
category of ‘associated forces’ will be lawfully subject to
extraordinary rendition. It will mean citizens seized by the
military will languish in military jails indefinitely, or in the
language of Section 1021 until ‘the end of hostilities’—in an age
of permanent war, for the rest of their lives,” Hedges added.

When Pres. Obama signed the NDAA on New Year’s Eve, he added a
statement in which he swore he wouldn’t use the military
detention provision against Americans. Given recent revelations
regarding his administration, however, another member of Hedges’
legal counsel told the journalist that he isn’t so certain that
will stand true.

“First the terrorism-industrial complex assured Americans that
they were only spying on foreigners, not US citizens,” Hedges
quoted from another attorney on the case, Carl Mayer. “Then
they assured us that they were only spying on phone calls, not
electronic communications. Then they assured us that they were
not spying on American journalists. And now both [major
political] parties and the Obama administration have assured us
that they will not detain journalists, citizens and
activists”

Hedges has already been detained by the US, Hedges added, while
recalling the case of Laura Poitras, an American filmmaker who
also claims to have been repeatedly held and interrogated by
federal officials during years of investigative work. Poitras has
most recently collaborated with the Guardian’s Glenn Greenwald on
digesting the National Security Agency leaks attributed to former
intelligence contractor Edward Snowden that have aided in
disproving some of the promises already made by the Obama
administration, as referenced by Carl Mayer.

Hedges is joined in the suit by a handful of plaintiffs,
including Pentagon Papers whistleblower Daniel Ellsberg, writer
Noam Chomsky and independent journalist Alexa O’Brien. When the
case was first brought before Judge Forrest last year, O’Brien
testified that federal contractors attempted to link a group she
co-founded, US Day of Rage, with Islamic organizations in an
attempt to discredit, and perhaps detain, her.

O’Brien said she had interviewed former Guantanamo Bay detainees
as part of her work as a journalist and feared that those
conversations could be construed as giving “substantial
support” to terrorist groups of “associated forces,”
as described in the NDAA.

After Pres. Obama authorized the NDAA, O’Brien said in court,
“I am now fearful of doing the type of reporting that I have
done on individuals and organizations that are considered
terrorists by the United States government and my reporting has
therefore been curtailed.”

According to emails
obtained by anti-secrecy group WikiLeaks that were pilfered from
private intelligence firm Stratfor, government contractors attempted to
connect US Day of Rage “to any Saudi or other fundamentalist
Islamic movements” in late 2011 before the NDAA was
autographed by Obama. O’Brien said that she later learned that
her employer was asked repeatedly by US government agents for
information about the journalist’s involvement with US Day of
Rage and the Occupy Wall Street movement

“I have an actual and well-founded fear that the US Government
will consider me a covered person under the [NDAA] and will
either detain me indefinitely or subject me to a military
tribunal,” she said in a sworn statement filed March 12,
2012. “Because of this fear I have substantially curtailed my
journalistic and political activities.”

Joining Hedges, Ellsberg, Chomsky and O’Brien in the lawsuit are
Icelandic parliamentarian Birgitta Jónsdóttir, RevolutionTruth
founder Tangerine Bolen, Occupy London activist Kai Wargalla and
Dr. Cornel West. In the appeals ruling from July, the court said,
“While Section 1021 does have meaningful effect regarding the
authority to detain individuals who are not citizens or lawful
resident aliens and are apprehended abroad, Jónsdóttir and
Wargalla have not established standing on this record.”

According to Hedges, the Supreme Court only accepted around 100
of the 8,000-or-so requests it receives each year. “If we
fail, if this law stands, if in the years ahead the military
starts to randomly seize and disappear people, if dissidents and
activists become subject to indefinite and secret detention in
military gulags, we will at least be able to look back on this
moment and know we fought back,” he wrote.